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Below are the head notes for the FAB decisions and orders relating to the topic heading, Wage-Loss Benefits. The head notes are grouped under the following subheadings: Calculation of average annual wage, Causation not proven, Elements to be proven, Evidence required, and In general. To view a particular decision or order in its entirety, click on the hyperlink for that decision or order at the end of the head note.

Calculation of average annual wage

  • In calculating an employee’s “average annual wage” (AAW) and adjusted earnings in subsequent years, DEEOIC considers “wages” received by a Part E employee to be all monetary payments from employment or services that were taxable as income under the Internal Revenue Code. DEEOIC has defined “wages” to include salaries, overtime compensation, sick leave, vacation leave, tips and bonuses received for employment or services. Specifically excluded from the definition of “wages” are capital gains, IRA distributions, pensions, annuities, unemployment compensation, state workers’ compensation benefits, medical retirement benefits and Social Security benefits. EEOICPA Fin. Dec. No. 10057883-2008 (Dep’t of Labor, October 20, 2010).
  • Dividend income received by a Part E employee from a subchapter S corporation under the Internal Revenue Code qualified as “wages” under Part E where evidence revealed that the employee materially participated in the operations of the corporation as its sole proprietor and 100% shareholder. The value of the health benefits received by the employee as an owner of 2% or more of shares of a subchapter S corporation qualifies as a deductible expense, and so was not taken into account when calculating his AAW. EEOICPA Fin. Dec. No. 10057883-2008 (Dep’t of Labor, October 20, 2010).
  • For each calendar year prior to normal retirement age during which, as a result of a covered illness, the employee’s wages exceeded 50% but did not exceed 75% of his average annual wage for the 36-month period immediately preceding the month in which the employee first experienced wage-loss as a result of the covered illness, the employee will receive $10,000.00.  It further provides that for each calendar year prior to normal retirement age during which, as a result of a covered illness, the employee’s wages did not exceed 50% of his average annual wage, the employee will receive $15,000.00.  EEOICPA Fin. Dec. No. 20221201-48314-5 (Dep’t of Labor, December 13, 2022).
  • FAB concluded that the evidence of record established that as a result of the employee’s covered illnesses, his earnings exceeded 50% of his average annual wage but did not exceed 75% in 2003, and that his earnings in 2004 and 2005 did not exceed 50% of his average annual wage.  Thus, the employee was entitled to wage-loss benefits of $10,000.00 for 2003 and $15,000.00 for both 2004 and 2005.  EEOICPA Fin. Dec. No. 20221201-48314-5 (Dep’t of Labor, December 13, 2022).
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Causation not proven

  • Where the evidence established that the employee had lost wages because he was terminated from his job as part of a Reduction-In-Force rather than as the result of any covered illness, FAB concluded that the employee had failed to prove the required element of causation and denied his wage-loss claim. EEOICPA Fin. Dec. No. 10002977-2006 (Dep’t of Labor, February 12, 2009).
  • Where the employee alleged that he first experienced wage-loss more than two years before he was first prescribed the medication that DEEOIC found caused him to develop the consequential illnesses that allegedly resulted in wage-loss, FAB determined that this temporal impossibility was fatal to his wage-loss claim. EEOICPA Order No. 20160927-7341-4 (Dep’t of Labor, June 29, 2017).
  • The statute at 42 U.S.C. § 7385s-2(a)(2)(A)(i) requires the Secretary to determine “the calendar month during which the employee first experienced wage loss as the result of any covered illness contracted by that employee through exposure to a toxic substance at a Department of Energy facility.” Because the employee failed to provide evidence that he was earning wages and that he subsequently experienced an actual loss of wages as a result of his covered illness in a particular month, his wage-loss claim was denied. EEOICPA Order No. 20160927-7341-5 (Dep’t of Labor, July 26, 2017).
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Elements to be proven

  • In addition to satisfying the general eligibility requirements applicable to all Part E claims, an employee seeking benefits for calendar years of qualifying wage-loss must also prove the following elements: (1) that the employee held a job at which he/she was earning wages; (2) that the employee experienced a loss in those wages in a particular month (the “trigger month”); (3) that the wage-loss in the trigger month was caused by the employee’s covered illness, i.e., that he/she would have continued to earn wages in the trigger month from that job but for the covered illness; (4) his/her AAW over the 36 months that immediately preceded the trigger month; (5) his/her normal retirement age and the calendar year (the “retirement year”) in which he/she would reach that age; (6) beginning with the calendar year of the trigger month, the percentage of the AAW that was earned in each calendar year up to and including the retirement year; (7) the number of those calendar years in which the covered illness caused the employee to earn 50% or less of his/her AAW; and (8) the number of those calendar years in which the covered illness caused him/her to earn more than 50% but not more than 75% of his/her AAW. EEOICPA Fin. Dec. No. 10002977-2006 (Dep’t of Labor, February 12, 2009).
  • To be eligible for wage-loss benefits under Part E, a DOE contractor employee must establish a loss of wages due to a covered illness. Qualifying calendar years of wage-loss will be found for any year, up to and including the calendar year that the employee reaches normal retirement age under the Social Security Act, in which the employee’s wages did not exceed 75% of his/her AAW, which is calculated based upon the 36-month period immediately preceding the first month of compensable wage-loss. EEOICPA Fin. Dec. No. 10057883-2008 (Dep’t of Labor, October 20, 2010).
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Evidence required

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In general

  • Part E does not provide wage-loss benefits for employees who should have been placed under restrictions and might have lost wages had those restrictions been in place. Rather, it only provides wage-loss benefits for employees who, consistent with the terms of 42 U.S.C. § 7385s-2(a)(2)(A)(i), actually experienced wage-loss caused by a covered illness. EEOICPA Fin. Dec. No. 10002977-2006 (Dep’t of Labor, February 12, 2009).
  • Congress explicitly authorized DEEOIC to engage in a notice-and-comment rulemaking to implement the wage-loss provisions found in Part E in § 7385s-10(e) of EEOICPA, and DEEOIC availed itself of that authority when it promulgated the regulations. Also, DEEOIC has the inherent administrative authority to issue internal procedural guidance to its claims staff describing the manner in which they should develop and adjudicate wage-loss claims. In this order denying a request for reconsideration, FAB found that these same regulatory and procedural requirements have found favor with the courts. EEOICPA Order No. 20160927-7341-4 (Dep’t of Labor, June 29, 2017).
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